This matter is before me on the Inspector General's (I.G.'s) Motion for Summary Affirmance of the I.G.'s determination to exclude the Petitioner herein, Richard C. Goodin, M.D., from participation in Medicare, Medicaid, and all other federal health care programs for a period of 10 years. The I.G.'s motion and determination to exclude Petitioner are based on the terms of section 1128(a)(4) of the Social Security Act (Act), 42 U.S.C. � 1320a-7(a)(4). As I shall explain below, the undisputed facts in this case require the imposition of a mandatory five-year exclusion, and fully support the reasonableness of the I.G.'s determination to enhance that period of exclusion to 10 years. For those reasons, I grant the I.G.'s Motion for Summary Affirmance.

I. Procedural Background

Richard C. Goodin, M.D., practiced medicine in the State of New York from 1970 until 2003. On April 24, 2003, Dr. Goodin was convicted on his guilty pleas to two Class C felony charges based on his illegal sale of prescriptions for controlled substances. He was obliged to surrender his license as a physician and was stricken from New York's roster of physicians effective August 7, 2003. Dr. Goodin was sentenced to a one-to-three-year term of incarceration on November 3, 2003.

As required by the terms of section 1128(a) of the Act, 42 U.S.C. � 1320a-7(a)(4), the I.G. began the process of excluding Petitioner from participation in Medicare, Medicaid, and all other federal health care programs. On July 30, 2004, the I.G. notified Petitioner that he was to be excluded for the enhanced period of 10 years; the exclusion was to take effect 20 days after the letter's date. I.G. Ex. 1.

Acting pro se, Petitioner timely sought review of the I.G.'s action on August 4, 2004. On or about September 7, 2004, Petitioner sent a pro se letter requesting that these proceedings be stayed pending his efforts at post-conviction relief in state court. I denied that request on September 22, 2004, and in the same letter notified the parties that I would convene a telephone prehearing conference on October 6, 2004.

The prehearing conference was held as scheduled pursuant to 42 C.F.R. � 1005.6. Its results and the actions taken during the conference are set out in my Order of October 21, 2004. Since the matter appeared to lend itself to the I.G.'s suggested approach by summary disposition, a schedule for the filing of the I.G.'s motion and the parties' briefs on the merits of that motion was established, and the parties were reminded of the importance of following Civil Remedies Division procedures in the marking and submission of exhibits.

The I.G.'s Motion for Summary Affirmance and a Brief in support of that Motion were filed timely on November 12, 2004. The I.G. submitted four proposed exhibits as attachments to the Brief.

The schedule established in my order of October 21, 2004 required Petitioner to file his responsive brief on or before December 17, 2004. No such responsive brief was received by this office by early January 2005, when this office enquired of the I.G. whether any pleading from Petitioner had been received there. On January 5, 2005, the I.G. forwarded two copies of a pleading it had received from Petitioner on December 28, 2004. The pleading was dated December 15, 2004, and began verbatim: "This petition is in response to the action of the [I.G.'s] exclusion of Petitioner from participation in the Medicare, Medicaid, and all Federal health care programs as defined in section 1128B(f) of the Social Security Act for a minimum period of 10 years."

Crucially, Petitioner's December 15, 2004 pleading was not responsive to the I.G.'s Motion and Brief. The pleading alleged that Petitioner's predicate conviction was obtained unlawfully and that Petitioner had filed petitions for post-conviction relief in state court, but did not address the merits of the I.G.'s position. The only other effort to address the issues in this case appeared in the pleading's penultimate paragraph: "Wherefore, Petitioner respectfully requests that the decision of the [I.G.] be stayed until after the decision of the King's County Supreme Court is rendered."

My review of Petitioner's December 15, 2004 pleading suggested that Petitioner might have submitted it with the limited intention, and for the sole purpose, of obtaining a stay of these proceedings. Because Petitioner appears pro se, it seemed prudent to offer him another opportunity to address and contradict the merits of the I.G.'s position. Accordingly, on February 3, 2005, I entered my Order denying the stay and revising the briefing schedule. The terms of that Order denied Petitioner's second request for a stay, informed the parties that Petitioner would be afforded another opportunity to present his position on the merits, reminded Petitioner of the required method of filing, and established a modified briefing schedule to accommodate these changes.

Petitioner filed nothing by the March 4, 2005 deadline established in my Order of February 3, 2005, and on March 21, 2005 I entered my Interim Order and Notice of Intention to Close Record. That Order informed the parties that since nothing further had been filed, the record would close on April 15, 2005, thus allowing them one final opportunity to file pleadings addressed to the merits of this case. That Order also informed the parties that I would not treat the case as having been abandoned by Petitioner, and would not invoke the terms of 42 C.F.R. � 1005.14(a)(5) to sanction his non-compliance with my earlier filing directives by dismissing his hearing request. Instead, the record would close on April 15, 2005, and I would then address the case on its merits as they appeared in that record as then constituted.

The filing deadline of April 15, 2005 came and passed with no additional filings from either party; consequently, I ordered the record in this case closed on April 25, 2005. The Order Closing Record lists the pleadings and correspondence comprising the record as of April 22, 2005. Since Petitioner has not objected to the I.G.'s four proposed exhibits, I have admitted them as I.G.'s Exhibits (I.G. Exs.) 1 - 4. Although the attachments to Petitioner's December 15, 2004 Response were not individually numbered in compliance with Civil Remedies Division procedures or my Order of October 21, 2004, I have assigned each attachment an exhibit number as set out in the Appendix to this Decision, and have admitted them as Petitioner's Exhibits (P. Exs.) 1 - 8.

It is apparent that Petitioner has not pressed his case on the merits directly or with clarity, or in compliance with my Orders intended to promote the fair and prompt adjudication of this case. 42 C.F.R. � 1005.4. It should also be apparent that he has been afforded every reasonable opportunity to do so. What must be made more than simply apparent, and is therefore recited explicitly here, is that his position has received my careful sua sponte explication based on each of his written pleadings, communications, and Exhibits.

II. Issues

The legal issues before me are limited to those enumerated at 42 C.F.R. � 1001.2007(a)(1). In the specific context of this record they are:

The applicable statutory, regulatory, and decisional authorities require that both issues be resolved in favor of the I.G.'s position. Section 1128(a)(4) of the Act mandates Petitioner's exclusion since his predicate convictions have been established. A five-year term of exclusion is the minimum period of exclusion established by section 1128(c)(3)(B) of the Act, 42 U.S.C. � 1320a-7(c)(3)(B), and is therefore ipso jure reasonable. The two aggravating factors relied on by the I.G. to enhance the term to 10 years have been established, and that enhancement is not unreasonable.

III. Controlling Statutes and Regulations

Section 1128(a)(4) of the Act, 42 U.S.C. � 1320a-7(a)(4), requires the mandatory exclusion from participation in Medicare, Medicaid, and all other federal health care programs of "(a)ny individual or entity that has been convicted . . . under Federal or State law, of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance." The terms of section 1128(a)(4) are restated somewhat more broadly in regulatory language at 42 C.F.R. � 1001.101(d). Petitioner does not suggest that the nature of his conviction is not comprehended in this statutory language, and that nexus is fully established by the evidence before me.

The Act defines "conviction" as including those circumstances "when a judgment of conviction has been entered against the individual . . . by a . . . State . . . court," section 1128(i)(1) of the Act; "when there has been a finding of guilt against the individual . . . by a . . . State . . . court," section 1128(i)(2) of the Act; or "when a plea of guilty . . . by the individual . . . has been accepted by a . . . State . . . court," section 1128(i)(3) of the Act, 42 U.S.C. �� 1320a-7(i)(1)-(3). These definitions are repeated at 42 C.F.R. � 1001.2. Petitioner does not contest that his convictions fall within the statutory and regulatory definition, and his convictions' satisfaction of that definition is fully established in the record before me.

An exclusion based in section 1128(a)(4) is mandatory and the I.G. must impose it for a minimum term of five years. Section 1128(c)(3)(B) of the Act, 42 U.S.C. � 1320a-7(c)(3)(B). The regulatory language of 42 C.F.R. � 1001.102(a) affirms the statutory provision. The minimum mandatory term of exclusion is subject to enlargement in some limited circumstances and on proof of carefully-defined aggravating or mitigating factors set out at 42 C.F.R. � 1001.102(b) and (c).

IV. Findings and Conclusions

I find and conclude as follows:

V. Discussion

The essential elements necessary to support an exclusion based on section 1128(a)(4) of the Act are: (1) the individual to be excluded must have been convicted of a criminal offense; (2) the criminal offense must have been a felony; and (3) the felony conviction must have been for conduct related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. Deborah Jo Oltman, R.N., DAB CR1254 (2004); Stephen Michael Cook, M.D., DAB CR1243 (2004); Michael J. O'Brien, D.O., DAB CR1150 (2004); Karl Eric Swanson, M.D., DAB CR1002 (2003); Kathleen E. Talbott, M.D., DAB CR772 (2001); Conrad J. Sarnecki, Jr., D.O., DAB CR722 (2000).

The official records of proceedings in the Supreme Court for the State of New York, County of Kings, show conclusively that Petitioner was indicted for at least 15 felonies based on his sale of prescriptions for certain named controlled substances such as codeine, hydrocodone, and dexedrine without having examined the purported "patient." I.G. Ex 2. On 24 April 2003, he pleaded guilty to two such charges, which are shown to be Class C felonies on court records. I.G. Ex. 3. On 3 November he was sentenced to two concurrent terms of one to three years imprisonment. I. G. Ex. 3. Those material facts alleged by the I.G. are conceded by Petitioner, although he asserts here that the convictions are invalid because they were allegedly obtained improperly. Thus, the undisputed material facts apparent on the face of this record fully establish the three essential elements and therefore provide an entirely sufficient legal basis for the mandatory exclusion here proposed.

Petitioner's two pleadings in this case contest the exclusion by challenging the validity of his convictions, and Petitioner has attached to them copies of his pro se filings in the Supreme Court of the State of New York: his Motion to Vacate Judgment, Affidavit in Support of Motion to Vacate Judgment, Memorandum of Law, and a number of documents related to his convictions. I have reviewed these documents. (P. Exs. 1 - 8.) Were it necessary for me to evaluate their merits, I would find without hesitation that they are frivolous and unlikely to obtain for Petitioner the relief he seeks by them; I need not make such a finding, however, since it is a fundamental principle of this forum's jurisprudence that collateral attacks on predicate convictions in exclusion proceedings are barred by regulation at 42 C.F.R. � 1001.2007(d), and that bar has been repeatedly affirmed by the Departmental Appeals Board (Board). Susan Malady, R.N., DAB No. 1816 (2002); Dr. Frank R. Pennington, M.D., DAB No. 1786 (2001); Joann Fletcher Cash, DAB No. 1725 (2000); Paul R. Scollo, D.P.M., DAB No. 1498; Chander Kachoria, R.Ph., DAB No. 1380 (1993).

Once a predicate conviction within the purview of section 1128(a) has been demonstrated, exclusion is mandatory. Salvacion Lee, M.D., DAB No. 1850 (2002); Lorna Fay Gardner, DAB No. 1733 (2000); David A. Barrett, DAB No. 1461 (1994). The term of such an exclusion must be for a minimum of five years, and neither I nor the Board may reduce such a term to less than five years. Mark K. Mileski, DAB No. 1945 (2004).

The term of exclusion may be enhanced if the I.G. is able to demonstrate the existence of certain aggravating factors, and if the I.G. undertakes to do so, a petitioner may attempt to limit or nullify the proposed enhancement through a showing of certain mitigating factors. The I.G. may offer evidence relating to any of the aggravating factors set out at 42 C.F.R. � 1001.102(b)(1) - (9). Those factors may be countered by evidence relating to any of the mitigating factors set forth at 42 C.F.R. � 1001.102(c)(1) - (3). But an overriding principle is this: no matter which aggravating or mitigating factors may eventually be established, in assessing the term of exclusion I must not go further than the question of its reasonableness, and my review must reflect the deference accorded to the I.G. by the regulations. So long as the length of the exclusion is within a reasonable range and is based on demonstrated criteria, I must not alter it. Jeremy Robinson, DAB No. 1905 (2004); JoAnn Fletcher Cash, supra.

The first aggravating factor relied on by the I.G. is specified at 42 C.F.R. � 1001.102(b)(5). The I.G. alleges that Petitioner's sentence included incarceration. The court records are plain that Petitioner was sentenced to two concurrent prison terms of one to three years. I.G. Ex. 3. He is now serving that term of incarceration. There is no genuine issue of material fact as to the nature of the sentence. The I.G. has established this aggravating factor.

The second aggravating factor on which the I.G. relies is also conclusively established by the record before me. That factor is present when ". . . the individual . . . has been the subject of any other adverse action by any Federal, State or local . . . board, if the adverse action is based on the same set of circumstances that serves as the basis for imposition of the exclusion." 42 C.F.R. � 1001.102(b)(9).

The I.G. asserts that this regulation is satisfied by the fact that Petitioner was compelled to surrender his license to practice medicine in New York as a result of his criminal misconduct. The status of Petitioner's medical license was the topic of proceedings before the New York State Board for Professional Medical Conduct in July, 2003; the nexus between Petitioner's surrender of his license and his felony convictions is explicit on the face of the Surrender Order. I.G. Ex. 4. There is no genuine issue of material fact as to the nature, context, or consequences of the New York State Board's action. The I.G. has established this aggravating factor.

Evidence relating to aggravating factors may be countered by evidence relating to any of the mitigating factors set forth at 42 C.F.R. � 1001.102(c)(1) - (3). Those mitigating factors appear immediately following the regulation's emphatic expression that "Only the following factors may be considered mitigating . . ." 42 C.F.R. � 1001.102(c). As to each of the mitigating factors, ". . . Petitioner ha[s] the burden of proving any mitigating factor by a preponderance of the evidence, since the mitigating factor is in the nature of an affirmative defense." Barry D. Garfinkel, M.D., DAB No. 1572 (1996).

Petitioner has made no attempt to establish the existence of any mitigating factor, and none has been established. Without intending the slightest weakening or dilution of the Garfinkel rule, I have searched Petitioner's pro se pleadings and attached documents for any hint that one or more of those mitigating factors might be brought into consideration. In doing so I have been guided by the Board's reminders, both explicit and implicit, that pro se litigants should be offered "some extra measure of consideration" in developing their records and their cases. Mark K. Mileski, DAB No. 1945 (2004); Brij Mattel, M.D., DAB No. 1894 (2003); Louis Mathews, DAB No. 1574 (1996); Timothy L. Stern, M.D., DAB No. 1314 (1992); Edward J. Petrus, M.D., DAB No. 1264 (1991). That search has revealed nothing that points to or hints at a colorable claim in mitigation, and nothing in any larger sense that would alter the result announced here.

The prison sentence and the license proceedings are based on acts which display certain unmistakable characteristics. In deciding on the enhanced term of exclusion, the I.G. had every reason to consider how those acts and characteristics were assessed by the sentencing judge and the state medical authorities. The I.G. would not have been unreasonable in first concluding that those acts alarmed the state medical authorities by displaying Petitioner's deliberate and repeated perversion of the position of trust he enjoyed as a licensed health care provider legally empowered to prescribe controlled substances. He no longer enjoys that position of trust because he is barred from the practice of medicine. Next, the I.G. would not have been unreasonable in concluding that, as seen by the sentencing judge, the acts betrayed an indifference to the public weal, since controlled substances are controlled precisely because they are dangerous and subject to abuse, and that Petitioner's prison sentence represents the judge's determination that the community be shielded from Petitioner's indifference for a "relatively substantial" and more than "token" incarceration" term. Jeremy Robinson, supra; Jason Halladay, M.D., DAB No. 1855 (2002). Third, the I.G. might with good reason have seen the prison sentence and license surrender as reflective of the state officials' stern disapproval of the motivation behind Petitioner's readiness to abandon his position of trust and to endanger the public: that motivation was monetary gain. Finally, the I.G. might quite reasonably have believed that the prison sentence and license surrender were in response to the substantial element of crimen falsi displayed in Petitioner's crimes. The latter two points are particularly telling when the integrity of federal health programs is recalled to be a goal of the exclusion process. Given these considerations, the I.G.'s determination to enhance the term of Petitioner's exclusion to 10 years is manifestly not unreasonable.

VI. Conclusion